TRUST AGREEMENT FOR
XxXXXXXXX TECHNOLOGIES, INC.
EMPLOYEE 401(k) SAVINGS PLAN
TABLE OF CONTENTS
PAGE
ARTICLE I 1
Introduction 1
Name 1
Purpose 1
Use of Terms 1
ARTICLE II 2
Fiduciary Responsibility 2
ARTICLE III 2
The Trust Fund and Its Administration 2
The Trust Fund 2
Plan Administrator 2
General Powers 2
Investment Managers 8
Compensation and Expenses 8
Limit of Trustee"s Responsibility 9
Common Fund 9
Loans 9
ARTICLE IV 10
Trust Investments 10
Investment by Trustee 10
Investment Manager-Directed Investment 10
Investment Funds 10
Employer Securities 11
Trustee"s Investment of Amounts Subject to Participant
Investment Direction 13
ARTICLE V 15
General Provisions 15
Action by Employers 15
Warranty 15
Disagreement as to Acts 15
Courts 15
Evidence 15
Third Parties 15
No Reversion in Employer 16
Interests Not Transferable 16
Indemnification 17
Litigation by Participants 17
Liabilities Mutually Exclusive 18
Waiver of Notice 18
Controlling Law 18
Gender and Number 18
Successors 18
Severability 18
Statutory References 18
ARTICLE VI 19
Changes in Trustee 19
Resignation or Removal of Trustee 19
Appointment of Successor Trustee 19
Duties of Resigning or Removed Trustee and of 19
ARTICLE VII 19
Amendment and Termination 19
Amendment By Company 19
Termination 20
ARTICLE VIII 20
Incorporation of Collective Investment Trusts 20
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TRUST AGREEMENT FOR
XxXXXXXXX TECHNOLOGIES, INC.
EMPLOYEE 401(k) SAVINGS PLAN
ARTICLE I
INTRODUCTION
I-1. NAME. The trust agreement set forth below may be referred to as
TRUST AGREEMENT FOR XxXXXXXXX TECHNOLOGIES, INC. EMPLOYEE 401(k) SAVINGS PLAN
(the "trust").
I-2. PURPOSE. This trust agreement forms a part of XxXxxxxxx
Technologies, Inc. Employee 401(k) Savings Plan (the "plan"). As part of the
plan, XxXxxxxxx Technologies, Inc. ("company") has designated Bank of America
National Trust & Savings Association to serve as "trustee" pursuant to this
trust agreement. The company and each other entity that has adopted the plan
shall be referred to collectively as the "employers" and individually as an
"employer." The trust is established, operated and maintained in the United
States of America exclusively for the investment and reinvestment of funds
contributed under the plan.
I-3. USE OF TERMS. Words and phrases used and defined for
purposes of the plan, which may be capitalized in the plan to indicate that
they are defined in the plan, but are not capitalized herein, are similarly
used and defined for purposes of this trust. The terms "trust,"
"agreement," "herein," "hereunder," and similar terms mean this
agreement and do not include the plan; but, unless qualified by the context
or otherwise defined in this agreement, a word, term or phrase defined in
this agreement is similarly defined for purposes of the plan.
ARTICLE II
FIDUCIARY RESPONSIBILITY
The plan administrator, the trustee, any investment manager appointed
pursuant to paragraph III-4, and any other fiduciaries with respect to the plan
or trust shall discharge their duties thereunder solely in the interest of
participants and beneficiaries, for the exclusive purpose of providing their
benefits and defraying reasonable expenses of plan and trust administration,
with the care, skill, prudence and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like character and with
like aims.
ARTICLE III
THE TRUST FUND AND ITS ADMINISTRATION
III-1. THE TRUST FUND. The "trust fund" as at any date means all
property then held by the trustee under this agreement.
III-2. PLAN ADMINISTRATOR. The plan is administered by an
Administrative Committee (the "plan administrator"), appointed by the company
pursuant to the plan. Benefits payable under the plan are distributed by the
trustee as directed by the plan administrator. The company will certify to the
trustee from time to time the person or persons appointed as members of the plan
administrator. The trustee may rely on the latest certificate received without
further inquiry or verification.
III-3. GENERAL POWERS. The trustee shall have exclusive authority
and discretion to manage and control the trust fund except to the extent that
authority to manage investments has been allocated to one or more investment
managers pursuant to paragraph III-4, to the administrator pursuant to paragraph
III-3(r), paragraph III-3(s), paragraph III-3(t) or paragraph IV-4, or to
participants pursuant to paragraph IV-5. The trustee shall have the following
powers, rights and duties in addition to those provided elsewhere in this
agreement, the plan or by law:
(a) To manage, sell, contract to sell, grant options to
purchase, convey, exchange, transfer, abandon, improve,
repair, insure, lease for any term (although commencing in
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the future or extending beyond the term of this trust) and
otherwise deal with all property, real or personal, in such
way, for such considerations, and on such terms and
conditions as the trustee decides.
(b) To retain in cash such amounts as the trustee considers
advisable and as are permitted by applicable law; and to
invest and reinvest part or all of the balance of the trust
fund in stocks, bonds, notes, mortgages, mutual fund shares
or other property of any kind, real or personal, and to
diversify such investments so as to minimize the risk of
large losses, unless under the circumstances it is clearly
prudent not to do so.
(c) To deposit cash in any depositary (including the banking
department of the bank acting as trustee or any affiliate of
the bank acting as trustee) without liability for interest
and, without limiting the generality of the foregoing, to
invest cash in savings accounts or time certificates of
deposits bearing a reasonable rate of interest in the
banking department of the bank acting as trustee or any
affiliate of the bank acting as trustee.
(d) To make any payment or distribution from the trust fund as
directed by the plan administrator without inquiring as to
whether a payee or distributee is entitled thereto or as to
whether it is proper, and the trustee shall not be liable
for a payment or distribution made as directed by the plan
administrator without notice or knowledge that the payment
or distribution is not proper under the terms of the plan or
this agreement; and to notify the plan administrator if a
payment or distribution is returned to the trustee, and the
trustee shall have no obligation to search for or ascertain
the whereabouts of a payee or distributee.
(e) To the extent permitted by law, to borrow from anyone, with
the company"s approval, such sum or sums from time to time
as the trustee considers desirable to carry out this trust,
and to mortgage or pledge all or part of the trust fund as
security, provided that the trustee shall not borrow to
acquire employer securities as described in paragraph
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IV-4, or pledge employer securities held under the trust as
security for any loan.
(f) To retain any funds or property subject to any dispute
without liability for interest and to decline to make
payment or delivery thereof until final adjudication by a
court of competent jurisdiction or until an appropriate
release is obtained.
(g) To begin, maintain or defend any litigation necessary in
connection with the administration of the plan or this
trust, except that, unless otherwise required by law, the
trustee shall not be obliged or required to do so unless
indemnified to the trustee"s satisfaction.
(h) With the consent of the company or the plan administrator,
to compromise, contest, arbitrate or abandon claims or
demands.
(i) Except as provided in paragraph IV-4 with respect to
employer securities, to give proxies to vote stocks and
other voting securities, to join in or oppose (alone or
jointly with others) voting trusts, mergers, consolidations,
foreclosures, reorganizations, liquidations, or other
changes in the financial structure of any corporation, and
to exercise or sell stock subscription or conversion rights.
(j) To hold securities or other property in the name of a
nominee, in a depositary, or in any other way, with or
without disclosing the trust relationship; provided,
however, that except as authorized by regulations issued by
the Secretary of Labor, the indicia of ownership of the
assets of the trust fund shall not be maintained outside the
jurisdiction of the district courts of the United States.
(k) Except as provided in paragraph IV-4 with respect to certain
employer securities, to report to the employers and the plan
administrator on each accounting date under the plan, or as
soon thereafter as practicable, or at such other times as
the employer may request, the then net worth of the trust
fund (that is, the fair market value of the trust fund, less
liabilities, if any, other than
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liabilities to persons entitled to benefits under the plan)
determined on the basis of such evidence, data or information
as the trustee considers pertinent and reliable.
(l) To furnish to the employers and the administrator an annual
account, or an account for such other period as the plan
administrator may specify or as may be required under this
agreement or the plan, on an accrual basis showing all
investments, receipts, disbursements, and other transactions
involving the trust during the account period, and also
showing the assets of the trust fund held at the end of the
period. Upon the expiration of ninety (90) days from the
date of filing such account, the trustee shall be forever
released and discharged from all liability and
accountability to the plan administrator with respect to the
accuracy of such accounting and the propriety of all acts
and failures to act of the trustee reflected in such account
for which it shall be responsible hereunder, except with
respect to any such acts or transactions as to which the
plan administrator shall within such 90 day period file with
the trustee specific written objections.
(m) To pay any estate, inheritance, income or other tax, charge
or assessment attributable to any benefit payable under the
plan out of such benefit after giving the employers and the
plan administrator notice as far in advance as practicable
(except that mandatory federal or state withholding of
income tax may be made without such notice); to defer making
payment of any such tax, charge or assessment if it is
indemnified to its satisfaction in the premises; and to
require before making any payment such release or other
document from any lawful taxing authority and such indemnity
from the intended payee as the trustee considers necessary
for its protection.
(n) To maintain records and accounts reflecting all receipts and
disbursements under this agreement and such other records
and accounts as the plan administrator may specify, all of
which shall be open to the inspection of the employers or
the plan administrator at all reasonable times, and may be
audited from
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time to time by anyone named by the employer or plan
administrator.
(o) To employ agents, attorneys, accountants or other persons
(who also may be employed by the employer) and to delegate
to them such powers as the trustee considers desirable
(except that the trustee may not delegate its
responsibilities as to the management or control of the
assets of the trust fund), provided that such delegation,
and the acceptance thereof, by such agents, attorneys,
accountants or other persons, shall be in writing; and, to
the extent permitted by law, the trustee shall be protected
in acting or refraining from acting on the advice of persons
so employed without court action.
(p) To appoint a bank, trust company, or broker or dealer
registered under the Securities Exchange Act of 1934 to act
as custodian with respect to any portion of the trust fund;
and a custodian so appointed shall have custody of such
assets as are deposited with it and as custodian such
rights, powers and duties with respect thereto as shall be
agreed upon from time to time by the trustee and such
custodian.
(q) When directed by the plan administrator, to make loans to
participants under the plan from the trust fund in an amount
or amounts specified by the plan administrator without
inquiring as to whether a participant is entitled to such a
loan or as to whether the loan is proper under the terms of
the plan or under any applicable state or federal law.
(r) When directed by the plan administrator or an investment
manager, to apply for and invest all or any part of the
assets of the trust fund in one or more guaranteed
investment contracts issued by one or more legal reserve
life insurance companies legally authorized to issue such
contracts in the state of Illinois, which contracts shall
provide for a guarantee as to principal and interest. The
plan administrator or an investment manager may direct the
trustee to accept and retain any insurance contracts
transferred to the trust from any insurance company or other
contract holders. The trustee may be
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designated as the contract holder under any such insurance
contracts, but any action required or permitted to be taken by
the trustee as contract holder shall be taken only in
accordance with the directions of the plan administrator or
the investment manager. The trustee may delegate to the plan
administrator or the investment manager any or all of its
duties as contract holder under any contract. The trustee
shall have no duty to question the propriety of any direction
of the plan administrator or any investment manager, and shall
incur no liability for any action taken pursuant to such
direction or for any failure to act in the absence of such
direction, nor shall the trustee be obligated to inquire into
the terms and conditions of any insurance contract purchased
or accepted and retained pursuant to such direction.
(s) When directed by the plan administrator or an investment
manager, to invest all or any portion of the assets of an
investment fund in one or more mutual funds selected by the
plan administrator or an investment manager, or to purchase
individual securities selected by the plan administrator or
an investment manager.
(t) When directed by the plan administrator or an investment
manager, to purchase one or more group annuity, deposit
administration or separate account contracts for the payment
of benefits to participants or their beneficiaries from one
or more legal reserve life insurance companies legally
authorized to issue such contracts in the state of Illinois.
(u) To furnish the plan administrator with such information in
the trustee"s possession as the plan administrator may need
for tax or other purposes.
(v) At the direction of the plan administrator to receive, hold
and invest any funds or other property transferred to the
trustee from any other trust forming a part of a plan
intended to meet the requirements of Section 401(a) of the
Internal Revenue Code; and to allocate, credit and
distribute any such funds and other property so transferred
as directed by
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the plan administrator in accordance with the terms of the plan.
(w) To transfer all or any portion of the trust fund to another
trust or trusts forming a part of a plan or plans that are
intended to meet the requirements of Section 401(a) of the
Internal Revenue Code, as directed by the plan
administrator.
(x) To perform any and all other acts which in the trustee"s
judgment are appropriate for the proper management,
investment and distribution of the trust fund.
(y) To transfer an eligible rollover distribution described in
Section 402(c)(4) of the Internal Revenue Code directly to
an eligible retirement plan described in Section
402(c)(8)(B) of the Internal Revenue Code, as directed by
the plan administrator.
III-4. INVESTMENT MANAGERS. The plan administrator may appoint one
or more investment managers for the purpose of directing the investment of part
or all of the assets of the trust fund. Except as otherwise provided by law,
the trustee shall have no obligation for investment of any assets of the trust
fund that are subject to management by an investment manager. Appointment of an
investment manager shall be made by written notice to the investment manager and
the trustee, which notice shall specify those powers, rights and duties of the
trustee under this agreement that are allocated to the investment manager and
that portion of the assets of the trust fund subject to investment management.
An investment manager so appointed pursuant to this paragraph shall be either a
registered investment adviser under the Investment Advisers Act of 1940, a bank,
as defined in said Act, or an insurance company qualified to manage, acquire and
dispose of the assets of the plan under the laws of more than one state of the
United States. Any such investment manager shall acknowledge to the plan
administrator in writing that it accepts such appointment and that it is a
fiduciary with respect to the plan and trust. An investment manager may resign
at any time upon written notice to the trustee and the employer. The plan
administrator may remove an investment manager at any time by written notice to
the investment manager and the trustee.
III-5. COMPENSATION AND EXPENSES. Except as otherwise provided below
in this agreement, all reasonable costs, charges and expenses incurred in the
administration of this trust and the plan, including compensation to the trustee
(as agreed upon
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between the employer and the trustee), compensation to an investment manager
(as agreed upon between the employer and the investment manager), and any
compensation to agents, attorneys, accountants and other persons employed by
the trustee or the plan administrator, will be paid from the trust fund to
the extent such costs and expenses are not paid by the employers in such
proportions as the company directs. Expenses incurred in connection with the
sale, investment and reinvestment of the trust fund (such as brokerage,
postage, express and insurance charges and transfer taxes) shall be paid from
the trust fund.
III-6. LIMIT OF TRUSTEE"S RESPONSIBILITY. No power, duty or
responsibility is imposed upon the trustee under the plan, except as set forth
in this agreement or the plan. Until they determine or are advised to the
contrary, the trustee and any investment manager (appointed as provided in
paragraph III-5) may assume that this trust is qualified under Section 401(a),
and is entitled to tax exemption under Section 501(a), of the Internal Revenue
Code of 1986.
III-7. COMMON FUND. If more than one employer has adopted the plan,
the trustee shall not be required to make any separate investment of the trust
fund for the account of the plan as applied to the several employers and may
administer and invest all contributions made under the plan as one trust fund.
If, for any purpose, it becomes necessary to determine as of any date the
portion of the trust fund allocable to all or any group of participants employed
by any one of the employers, such portion shall be determined by the plan
administrator, taking into consideration the relative aggregate employer
contributions to the trust fund with respect to such participants, the relative
aggregate benefits paid and payable from the trust fund to or on behalf of such
participants, and such other factors as the plan administrator deems
appropriate. Any such determination by the plan administrator shall be binding
upon all of the employers, participants and all other persons. The trustee will
have no duty or responsibility to question any determination or direction by the
plan administrator under this paragraph III-7.
III-8. LOANS. The plan administrator shall be the named fiduciary
exclusively responsible for the administration of the participant loan program
pursuant to the terms of the plan, including responsibility for issuing and
maintaining custody of promissory notes and other documentation pertaining to
such loans, and for all related loan disclosure and recordkeeping matters. Loan
payments shall be collected by the plan administrator and remitted to the
trustee, who shall invest such repayments among the investment funds in the
proportions directed by the plan administrator. Promissory notes held by the
plan administrator shall not be included as assets of the trust fund
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for purposes of the reports and accounts furnished by the trustee. The
trustee shall not be liable for any actions taken by the plan administrator
under this paragraph.
ARTICLE IV
TRUST INVESTMENTS
IV-1. INVESTMENT BY TRUSTEE. Except to the extent that an
investment manager has been appointed, except to the extent the trustee is
directed to invest in guaranteed investment contracts under subparagraph
III-3(r), in mutual funds or individual securities under subparagraph
III-3(s), in group annuity deposit administration or separate account
contracts under subparagraph III-3(t), or in employer securities under
paragraph IV-4, and except to the extent that participants direct investments
among investment funds under paragraph IV-5, the trustee shall have the sole
investment responsibility with respect to the assets of the trust fund, and
the trustee shall have the sole and exclusive authority and discretion to
manage, acquire, dispose and control such assets of the trust fund and may
invest and reinvest any portion or all of such assets in stocks, bonds,
notes, mortgages, mutual fund shares or other property of any kind, real or
personal.
IV-2. INVESTMENT MANAGER-DIRECTED INVESTMENT. If the plan
administrator has appointed an investment manager pursuant to paragraph III-4 of
the trust, such investment manager shall have sole and exclusive authority and
discretion to direct the trustee as to the investment of part or all of the
assets of the trust fund and, except as provided by law, the trustee shall have
no obligation with respect to the investment of such plan assets.
IV-3. INVESTMENT FUNDS. If the plan administrator has authorized the
establishment of investment funds under the plan, the plan administrator shall
decide which investment funds shall be offered under the plan and the employer
shall establish written guidelines and objectives for each fund under the plan.
Examples of investment funds include a fixed income fund, an equity fund, a fund
consisting of mutual funds selected by the plan administrator or an investment
manager, and a employer stock fund designed to invest primarily in employer
securities, as described in paragraph IV-4. The trustee will invest
contributions and account balances among the investment funds in the proportions
directed by the plan administrator, but shall have no duty to verify such
directions and shall not be responsible for any loss that results from following
such directions. The trustee may, upon at least 30 days" advance written notice
to the employer, terminate an existing investment fund or funds.
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IV-4. EMPLOYER SECURITIES. The plan administrator may direct the
trustee to invest all or any part of the assets of an investment fund in
employer securities, in accordance with the following provisions:
(a) The term "employer security" means stock that is a
qualifying employer security (as defined in Section
407(d)(5) of the Employee Retirement Income Security Act of
1974 ("ERISA")) issued by an employer of employees covered
by the plan, or by an affiliate of such employer.
(b) The plan administrator may direct the trustee to invest any
portion of the assets of the trust fund (other than assets
under the control of an investment manager appointed under
paragraph III-4) in employer securities, may direct the
trustee to sell any such securities held as an asset of the
trust fund and may direct the trustee to accept a
contribution from an employer in the form of employer
securities; provided that, all such purchases and sales
shall be for adequate consideration (as defined in Section
3(18) of ERISA) and shall meet the requirements exempting
such transactions from the prohibited transaction provisions
of ERISA and the Internal Revenue Code. Adequate
consideration means: in the case of a security for which
there is a generally recognized market, either (i) the price
of the security prevailing on a national securities exchange
that is registered under Section 6 of the Securities
Exchange Act of 1934, or (ii) if the security is not traded
on such a national securities exchange, a price not less
favorable to the plan than the offering price for the
security as established by the current bid and asked prices
quoted by persons independent of the issuer and of any party
in interest (as defined in Section 3(14) of ERISA); and in
the case of an employer security (including an employer
security acquired directly from the issuer) other than a
security for which there is a generally recognized market,
the fair market value of such security as determined in good
faith by the plan administrator pursuant to the terms of the
plan and in accordance with applicable law. The trustee
will not undertake to value or be responsible for the
valuation of employer
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securities not traded on a national securities exchange.
The trustee shall not be required to hire an independent
valuation firm to value employer securities not traded on a
national securities exchange. The trustee may rely on any
valuation figure supplied by the plan administrator or the
opinion of an independent valuation firm hired by the plan
administrator, but shall have no duty to verify such opinion
or valuation figure and shall not be responsible for any loss
that results from reliance upon such opinion or valuation
figure. The trustee may, in its sole discretion, direct the
plan administrator to obtain an opinion of an independent
valuation firm or may require that an additional valuation be
obtained.
(c) If securities issued by an employer are acquired from or
sold to a party in interest, no commission shall be charged
to the trust fund with respect to such acquisition or sale.
(d) Directions to be given or furnished by the plan
administrator to the trustee in accordance with the
provisions of this paragraph shall be in writing or such
other form of communication as is mutually acceptable to the
plan administrator and the trustee. Absent any direction by
the plan administrator, the trustee shall have no obligation
or responsibility to acquire or sell any employer securities
pursuant to the provisions of this paragraph and may invest
any assets of the trust fund without regard to this
paragraph.
(e) The trustee shall not exercise any voting rights with
respect to the securities of an employer unless directed by
the plan administrator and shall not be liable for the
voting of such securities, the failure to vote such
securities if not directed by the plan administrator or the
direct or indirect results of such voting or failure to
vote. The plan administrator shall direct the trustee with
respect to the exercise of stock subscription rights,
conversion rights, warrants, options, tender offers,
buy-sell arrangements and other rights or duties with
respect to employer securities held by the
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trust fund. The plan administrator also shall direct the
trustee with respect to the disposition of any dividend
income related to the employer securities held under the
trust fund.
(f) The plan administrator shall determine whether the employer
securities purchased by the trust fund must be registered or
must comply with any provision of the Securities Act of 1933
(the "Act") or any other state or federal law governing or
pertaining to securities. If the plan administrator
determines that such registration or other action is
necessary, the plan administrator shall complete and file a
Registration Statement under the Act or such other
documentation as is required by applicable state or federal
law.
IV-5. TRUSTEE"S INVESTMENT OF AMOUNTS SUBJECT TO PARTICIPANT
INVESTMENT DIRECTION. If the plan administrator has specified that participants
may individually direct the investment of their accounts, the trustee shall,
upon written direction from a participant given in accordance with the terms of
the plan, invest and reinvest amounts credited to such participant"s account as
directed by the participant subject to the following:
(a) The trustee, except as otherwise provided below, shall make
purchases, pledges or sales of any property for a
participant"s accounts only as the participant directs in
writing and the trustee shall be under no obligation to
inquire as to the propriety of or the amount of any
investment direction of a participant.
(b) The trustee shall have the power to invest any portion of
the assets in a participant"s investment account that is
held in cash or cash equivalents in short term, fixed income
investments pending receipt of instructions from the
participant regarding the investment of his accounts.
(c) Each participant shall indemnify and hold the trustee and
the employer harmless for any losses suffered as a result of
investments and reinvestments made by the trustee in good
faith reliance upon any investment direction given by such
participant in accordance with
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this paragraph IV-5 and the terms of the plan.
(d) The trustee shall have the power, right and duty to
determine and report to the plan administrator, at such
times as the plan administrator and the trustee shall agree
upon, the fair market value (as determined in the sole
discretion of the trustee) of the assets held for the
benefit of each participant in accordance with this
paragraph IV-5. The trustee shall have the right to rely on
valuations prepared by third parties as to assets held by
any such third party.
(e) The trustee shall have the power, right and duty to provide
to the plan administrator on each accounting date or as soon
thereafter as practicable a statement showing the assets
held for the benefit of each participant in accordance with
this paragraph IV-5 and any expenses attributable to the
acquisition and maintenance of such assets and expenses
attributable to any assets disposed of since the last
preceding accounting date.
(f) On the written direction of a participant, given in
accordance with the plan, the trustee shall liquidate for
their fair market value (as determined by the trustee after
consulting with the participant) all of the assets held for
the benefit of the participant in accordance with this
paragraph IV-5 and credit to such participant"s accounts
under the plan the amount realized on such liquidation.
(g) Notwithstanding paragraph III-5, all expenses incurred in
connection with the sale, investment and reinvestment of
assets in accordance with this paragraph IV-5 (such as
custodial, maintenance, investment manager, brokerage,
postage, express and insurance charges and transfer taxes)
shall be charged to the appropriate accounts of a
participant.
(h) If required by law, the trustee reserves the right to
disapprove any investment direction filed with the trustee.
(i) Except to the extent otherwise required by law, the trustee
is not liable or responsible for any loss resulting to
accounts by reason
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of any investment or reinvestment made by the trustee at the
direction of a participant, and, therefore, the trustee is
relieved of any duty to review from time to time such property
included in a participant"s investment accounts.
ARTICLE V
GENERAL PROVISIONS
V-1. ACTION BY EMPLOYERS. Any action required or permitted to be
taken by an employer under the trust shall be by resolution of its Board of
Directors, by resolution of a duly authorized committee of its Board of
Directors, or by a person or persons authorized by resolution of its Board of
Directors or such committee.
V-2. WARRANTY. The employer warrants that all directions or
authorizations by it or the plan administrator, whether for the payment of money
or otherwise, will comply with the plan and this trust.
V-3. DISAGREEMENT AS TO ACTS. If there is a disagreement between the
trustee and anyone as to any act or transaction reported in any accounting, the
trustee shall have the right to a settlement of its account by any proper court.
V-4. COURTS. Except as otherwise provided by law, in case of any
court proceedings involving an employer, the plan administrator, the trustee or
the trust fund, only the employer or the plan administrator, as the case may be,
and the trustee shall be necessary parties to the proceedings, and no other
person shall be entitled to notice of process. A final judgment entered in any
such proceedings shall be conclusive.
V-5. EVIDENCE. Evidence required of anyone under this agreement may
be by certificate, affidavit, document or other information which the person
acting on it considers pertinent and reliable, and signed, made or presented by
the proper party or parties.
V-6. THIRD PARTIES. Except as otherwise provided by law, the
trustee"s exercise or non-exercise of its powers and discretions in good faith
shall be conclusive on all persons. No one shall be obliged to see to the
application of any money paid
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or property delivered to the trustee, except to the extent such person is
acting as an investment manager as respects such money or property. The
certificate of the trustee that it is acting according to this agreement will
fully protect all persons dealing with the trustee. An insurance company or
investment manager may assume that this agreement and the plan have not been
amended or changed unless notice of such amendment or change is received by
the investment manager or by the insurance company at its home office.
V-7. NO REVERSION IN EMPLOYER. The employers shall have no right,
title or interest in the trust fund, nor shall any part of the trust fund revert
or be repaid to an employer, directly or indirectly, unless:
(a) a contribution is made by such employer by mistake of fact
and such contribution is returned to the employer within one
year after payment to the trustee; or
(b) a contribution conditioned on the deductibility thereof is
disallowed as an expense for federal income tax purposes and
such contribution (to the extent disallowed) is returned to
the employer within one year after the disallowance of the
deduction; or
(c) the Internal Revenue Service initially determines that the
plan, as applied to the employer, does not meet the
requirements of Section 401(a) of the Internal Revenue Code,
in which event, any trust assets attributable to
contributions made by such employer shall be returned to it
within one year of the date of the denial of qualification
of the plan.
The amount of any contribution that may be returned to the employer pursuant to
subparagraph (a) or (b) above must be reduced by any portion thereof previously
distributed from the trust fund and by any losses of the trust fund allocable
thereto, and in no event may the return of such contribution cause any
participant"s account balances to be less than the amount of such balances had
the contribution not been made under the plan.
V-8. INTERESTS NOT TRANSFERABLE. The interests of persons entitled
to benefits under the plan are not subject to their debts or other obligations
and, except as may be required by the tax withholding provisions of the Internal
Revenue Code or any state"s income tax act or pursuant to a qualified domestic
relations order as defined in Section 414(p) of the Internal Revenue Code, may
not be voluntarily or involuntarily sold,
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transferred, alienated, assigned or encumbered. Notwithstanding the
foregoing, to the extent that a participant has loans outstanding from the
plan at the time distribution of his accounts is to commence, the amount of
principal and interest then outstanding shall reduce the distribution of the
account balances as set forth in the plan.
V-9. INDEMNIFICATION. To the extent permitted by law, no present or
former plan administrator member, nor any person who is or was a director,
officer, or employee of the employer shall be personally liable for any act done
or omitted to be done in good faith in the administration of the plan or this
trust. Any employee of an employer to whom the plan administrator or an
employer has delegated any portion of its responsibilities under the plan, any
person who is or was a director or officer of an employer, members and former
members of the plan administrator, and each of them, shall, to the extent
permitted by law, be indemnified and saved harmless by the employers (to the
extent not indemnified or saved harmless under any liability insurance or other
indemnification arrangement with respect to the plan or this trust) from and
against any and all liability or claim of liability to which they may be
subjected by reason of any act done or omitted to be done in good faith in
connection with the administration of the plan or this trust or the investment
of the trust fund, including all expenses reasonably incurred in their defense
if the employers fail to provide such defense after having been requested to do
so in writing. The trustee shall be indemnified and saved harmless by the
employers with respect to any liability or claim of liability to which the
trustee shall be subjected by reason of its compliance with any directions given
in accordance with the provisions of the plan or this trust by an investment
manager, the plan administrator or employers, or any person duly authorized by
the plan administrator or the employers, or by reason of its failure to take any
action with respect to any assets of the trust fund that are subject to
investment direction from an investment manager or the plan administrator in the
absence of direction from the investment manager or the plan administrator,
including all expenses reasonably incurred in its defense if the employers fail
to provide such defense after having been requested to do so in writing.
V-10. LITIGATION BY PARTICIPANTS. If a legal action begun against
the trustee, an employer or the plan administrator by or on behalf of any person
results adversely to that person, or if a legal action arises because of
conflicting claims to a participant"s or other person"s benefits, the cost to
the trustee, the employers or the plan administrator of defending the action
will be charged to the extent permitted by law to the sums, if any, which were
involved in the action or were payable to the person concerned.
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V-11. LIABILITIES MUTUALLY EXCLUSIVE. To the extent permitted by
law, the trustee, an investment manager, the employers and each plan
administrator member shall be responsible only for its own acts or omissions and
neither the plan administrator nor the trustee shall be required to collect any
contribution from an employer or any other person or to verify that it is in the
proper amount. No insurance company shall be a party to this agreement for any
purpose or be responsible for the validity of this agreement, it being intended
that an insurance company shall be liable only for the obligations set forth in
the contracts issued by it.
V-12. WAIVER OF NOTICE. Any notice required under this agreement may
be waived by the person entitled to such notice.
V-13. CONTROLLING LAW. Except to the extent superseded by laws of
the United States, the laws of Illinois shall be controlling in all matters
relating to this agreement.
V-14. GENDER AND NUMBER. Where the context admits, words in the
masculine gender shall include the feminine and neuter genders, the singular
shall include the plural, and the plural shall include the singular.
V-15. SUCCESSORS. This agreement shall be binding on all persons
entitled to benefits under the plan and their respective heirs and legal
representatives, on the employers and its successors and assigns, on the trustee
and its successors and on the plan administrator members and their successors.
The term "employer" as used in the plan and this agreement includes any entity
that continues the plan and this trust in effect, as provided in the plan.
V-16. SEVERABILITY. If any provision of this agreement is held to be
illegal or invalid, such illegality or invalidity shall not affect the remaining
provisions of this agreement, and it shall be construed and enforced as if such
illegal or invalid provision had never been inserted therein.
V-17. STATUTORY REFERENCES. Any references in this agreement to a
Section of the Internal Revenue Code of 1986 or the Employee Retirement Income
Security Act of 1974 shall include any comparable section or sections of any
future legislation that amends, supplements or supersedes said Section.
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ARTICLE VI
CHANGES IN TRUSTEE
VI-1. RESIGNATION OR REMOVAL OF TRUSTEE. The trustee may resign at
any time by giving sixty days" advance written notice to the company. The
company may remove a trustee by giving sixty days" advance written notice to the
trustee. The company shall promptly appoint a successor trustee, and if no
successor trustee has been appointed by the effective date of the trustee"s
resignation, the trustee may petition a court of competent jurisdiction to
appoint a successor trustee at the expense of the trust fund.
VI-2. APPOINTMENT OF SUCCESSOR TRUSTEE. The company shall fill any
vacancy in the office of trustee as soon as practicable and shall give prompt
written notice thereof to the person or corporation appointed to fill the
vacancy, the other employers, if any, and to the plan administrator.
VI-3. DUTIES OF RESIGNING OR REMOVED TRUSTEE AND OF SUCCESSOR
TRUSTEE. A trustee that resigns or is removed shall furnish promptly to the
employers and the successor trustee an account of its administration of the
trust from the date of its last account. Each successor trustee shall succeed
to the title to the trust fund vested in its predecessor without the signing or
filing of any instrument, but each predecessor trustee shall execute all
documents and do all acts necessary to vest such title of record in the
successor trustee. Each successor trustee shall have all the powers conferred
by this agreement as if originally named trustee. No successor trustee shall be
personally liable for any act or failure to act of a predecessor trustee. With
the approval of the company, a successor trustee may accept the account
furnished and the property delivered by a predecessor trustee without incurring
any liability for so doing.
ARTICLE VII
AMENDMENT AND TERMINATION
VII-1. AMENDMENT BY COMPANY. This trust may not be amended by the
company, except with the advance written consent of the trustee. Except as
provided in paragraph V-7, under no condition shall an amendment result in the
return or repayment to an employer of any part of the trust fund or the income
from it or result in the distribution of the trust fund for the benefit of
anyone other than persons entitled to benefits under the plan.
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VII-2. TERMINATION. If the plan is terminated as to an employer,
this trust, including all rights, titles, powers, duties, discretions and
immunities imposed on or reserved to the trustee, the employer and the plan
administrator nevertheless shall continue in effect until all assets have been
distributed by the trustee as directed by the plan administrator under the plan.
ARTICLE VIII
INCORPORATION OF COLLECTIVE INVESTMENT TRUSTS
Notwithstanding any other provisions of this agreement, the trustee or
any investment manager may cause any part or all of the trust assets for which
it has investment responsibility to be invested in any common, collective or
commingled trust fund or pooled investment fund qualified under Section 401(a)
and entitled to tax exemption under Section 501(a) of the Internal Revenue Code
of 1986. To the extent trust assets are invested in any such common, collective
or commingled trust fund or pooled investment fund, the provisions of the
documents under which such fund is maintained, as amended from time to time,
shall govern any investment therein, and such provisions are hereby incorporated
herein and made a part of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be executed by their duly authorized officer this 2nd day of
June, 1998.
XxXXXXXXX TECHNOLOGIES, INC.
By: /s/ Xxx X. Xxxxxxx
-------------------------------------
Title: VP, Human Resources & Quality
BANK OF AMERICA NT & SA
By: /s/ Xxxxxxxxx Xxxxx
--------------------------------------
Title: Vice President
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